{"id":2247,"date":"2022-12-19T09:00:41","date_gmt":"2022-12-19T09:00:41","guid":{"rendered":"https:\/\/blogs.luc.edu\/ipbytes\/?p=2247"},"modified":"2024-07-13T06:26:29","modified_gmt":"2024-07-13T06:26:29","slug":"thinking-out-loud-about-copyrights-ed-sheerans-recent-copyright-lawsuits","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/ipbytes\/thinking-out-loud-about-copyrights-ed-sheerans-recent-copyright-lawsuits\/","title":{"rendered":"Thinking out Loud\u2026. About Copyrights: Ed Sheeran\u2019s Recent Copyright Lawsuits"},"content":{"rendered":"

Ed Sheeran<\/a> is a Grammy-winning artist<\/a> known for his hit songs such as \u201cThinking Out Loud<\/a>\u201d and \u201cThe Shape of You<\/a>.\u201d Sheeran has accrued a great deal of wealth<\/a> and as a result seems to be a good target for copyright trolls, litigious entities or individuals that litigate large amounts of copyright infringement cases with often baseless claims in the hope for a settlement. Ed Sheeran is a well-known artist and as such, he is in a financial situation to settle lawsuits rather than go through the litigation process.<\/p>\n

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\u00a0Photo by Wes Hicks on Unsplash.<\/em><\/figcaption><\/figure>\n

What can be Copyrighted?<\/strong><\/p>\n

Copyrights<\/a> cover works that are fixed, original, and made with a minimum level of creativity. In Feist v. Rural<\/em><\/a>, the Supreme Court<\/a> has said that to be minimally creative it needs to have a \u201cspark\u201d of creativity. This means that a copyright can\u2019t just be an alphabetized list as in a traditional phone book.<\/p>\n

The copyrighted work also needs to be fixed in some tangible medium, meaning the work has to be recorded in some fashion. An improvised jazz performance that isn\u2019t recorded in any form cannot be copyrighted for this reason.<\/p>\n

Finally, a work of art must be original to the creator. This means that you are the actual author of the work, and you did not copy it from someone else. You can\u2019t copyright works stolen from someone else.<\/p>\n

How Does Someone Infringe?<\/strong><\/p>\n

If an artwork meets all of the above requirements, then the artist has legal protection for his artwork. This legal protection gives the artist certain rights, such as reproducing the work, producing derivative works, and distributing copies of the work.<\/p>\n

Before enforcing a copyright, the owner must register their copyright with the Library of Congress<\/a>,. After that, a lawsuit may follow for violating any of the exclusive rights of the copyright. These rights, as described in section 17 of U.S. code \u00a7 106<\/a>, include the right to reproduce the copyrighted work in copies or phonorecords, to prepare derivative works based upon the copyrighted work, to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending, and in the case of sound recordings, right to perform the copyrighted work publicly by means of a digital audio transmission. For the copyright owner to prevail, it must establish infringement of one of the 106 rights. A defendant could be infringing one of these rights by either a direct admission of copying the work or an inference of copying. If there isn\u2019t direct copying of the copyrighted work, then the court will then use a two-part analysis to infer whether an infringement has occurred if they determine: 1) that the defendant had access to the plaintiff’s work and 2) that the defendant\u2019s work is substantially similar to protected aspects of the plaintiff’s work.<\/p>\n

Let\u2019s look at some of Ed Sheeran\u2019s recent lawsuits to see how this two-part analysis works.<\/p>\n

Ed Sheeran\u2019s Recent Trouble<\/strong><\/p>\n

Ed Sheeran defended the originality of his music in a lawsuit in 2018 in relation to his song \u201cShape of You\u201d which resulted in Sheeran\u2019s favor on April 6th<\/sup> 2022<\/a>. Sheeran was accused of stealing the refrain \u201cOh I\u201d from another English singer\u2019s song \u201cOh Why<\/a>\u201d by Sami Switch. \u00a0This case was actually filed in the UK. As a result, the guidance and law behind the copyright infringement claim could be very different and the resulting $1.1 million verdict in favor of Sheeran could have been made using a different analysis.<\/p>\n

A US Analysis of the \u201cShape of You\u201d Case<\/strong><\/p>\n

Even though the \u201cShape of You\u201d case was filed in the UK, let\u2019s take a look at it from a U.S. point of view. Again, the standard in the United States for copyright infringement is to determine if any of the 106 rights<\/a> of the copyright holder have been violated, if the infringing party had access to the plaintiff\u2019s copyrighted work, and if the infringing party took copyrighted material from the holder.<\/p>\n

Sami Switch claims that his rights were violated as Sheeran copied sections of his song \u201cOh Why\u201d to create the Sheeran song \u201cShape of You.\u201d Switch contended that his song came out in 2015, before Sheeran\u2019s song in 2017. In addition, the song \u201cOh Why\u201d was released on digital platforms that could be readily used by the public. This means Sheeran likely could have accessed Switch\u2019s song in the two-year period before he produced \u201cShape of You.\u201d This means the first step of the indirect copying is satisfied, Sheeran stated that he never heard \u201cOh Why\u201d by Sami Switch and even if he did, the song lyrics are very different. Despite the statements of Sheeran, he had definite access to the song, and he was capable of hearing the song.<\/p>\n

The issue then is whether Sheeran\u2019s song copies the Sami Switch Song. As someone who doesn\u2019t write music, the songs sound very similar to me. The refrain from Sheeran\u2019s song seems very similar to the \u201cOh Why\u201d sections of Sami\u2019s song. However, in the UK court case<\/a> they go through the similarities and differences of the songs using two music experts in paragraphs 33 to 37. The \u201cOh I\u201d phrase and \u201cOh Why\u201d hook sound very similar and the tune in each song comprises the first four tones of a rising minor pentatonic scale<\/a>. A major difference is the \u201cOh\u201d section of \u201cOh I\u201d in \u201cShape of You\u201d is sung in tune with the beat of the song while \u201cOh Why\u201d adds emphasis to the \u201cWhy\u201d section that contributes to the somber theme of the song. The court goes further into the minute details of each song but these traits were the most important for analysis.<\/p>\n

The other issue is whether a melody<\/a> used in a song is enough to show that improper appropriation of Switches song. First, the words \u201coh why\u201d or \u201coh I\u201d present in the songs are slightly different, but the overall sound of the words are the same. Next, the refrain is very brief in the Sheeran song where the \u201cOh Why\u201d melody of the Sami Switch song reoccurs throughout the song and leads into the fundamental question present in the song. Finally, Sheeran presented evidence in the case that he used the same pentatonic scale in prior songs before the Sami Switch song came out and that other songs share the same melody. To summarize, there are compelling differences between the singing sections and the pentatonic scales that are similar do not represent compelling evidence that the melodies are substantially similar. I don\u2019t think the case would have succeeded in the United States, but it\u2019s interesting to think about and is a good primer for the next case.<\/span><\/p>\n

Structured Asset Sales V. Ed Sheeran<\/strong><\/p>\n

Sheeran defended his music again in another copyright claim<\/a> in 2018. The claim was lodged by a company called Structured Asset Sales (\u201cSAS\u201d), which purchased a portion of the estate of Ed Townsend who co-wrote the Marvin Gaye song \u201cLet\u2019s Get It On<\/a>.\u201d Ed Sheeran has argued that the Marvin Gaye chord that is the subject of the lawsuit is not distinct or substantial enough to warrant copyright protection as a matter of law. The court, however, disagreed moving the case forward for a jury trial in the near future (once a date is decided).<\/p>\n

The Estate of Cherrigale Townsend v. Ed Sheeran<\/strong><\/p>\n

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Photo by Marius Masalar on Unsplash.<\/em><\/p>\n

The SAS case isn\u2019t the first time Ed Sheeran was sued for copyright infringement related to Marvin Gaye\u2019s song. In 2016 Sheeran was sued<\/a> by the \u00a0Cherrigale Townsend Estate for copyright infringement related to the same song \u201cLet\u2019s Get It On.\u201d The Estate holds two thirds of the interest of the musical composition while SAS owns one third. However the lawsuit seems dead in the water because evidence vital to the plaintiffs case was dismissed<\/a> in limine (as a preliminary matter before trial).<\/p>\n

The Townsend estate only has rights to the musical composition of the song and not the recording of Marvin Gaye\u2019s performance. Despite the estate\u2019s ownership of the musical composition, the estate used a recording of a performance by Marvin Gaye as evidence of copying on the part of Ed Sheeran. Copyright protection can exist separately for a musical composition, i.e., the sheet music representing a song and a sound recording of the song. A party can have the rights to both the sound recording and the musical composition of a song. However, that is not the case for the Townsend Estate, which owns just the copyright in the composition, and not Marvin Gaye\u2019s performance.<\/p>\n

While the subject of this case is the musical composition, the estate is arguing to compare the recording to Ed Sheeran\u2019s song \u201cThinking Out Loud.\u201d The reason behind this is the strongest evidence that the \u201cheart\u201d of \u201clet\u2019s get it on\u201d was copied by Sheeran is the presence of musical elements from the recording in the Sheeran song. However this does not support infringement of the composition which is separate from the recording and the 9th<\/sup> circuit court recently decided that copyrights before 1976 still have to follow the same evidentiary standards of copyrights under the 1976 Copyrights Act<\/a>. The estate does not have rights to the recording, and it is not the subject of the case. The added elements of the recording are not present in the composition. The similarities of the recording to Sheeran\u2019s song cannot be used to show the composition is similar when those elements are not present. The court did not allow<\/a> the use of the recording as direct evidence and the case has not had any recent updates since the motion was approved by the court.<\/p>\n

Structured Assets Sales: Legitimate Litigant or Copyright Troll?<\/strong><\/p>\n

If the Estate of Cherrigale Townsend (which holds two thirds of estate interest) couldn\u2019t succeed in its case, you are likely wondering how Structured Asset Sales LLC was able to get its case to trial. Well, after the estate failed to proceed with its lawsuit, SAS acquired the rights<\/a> (paragraph 2 of the record) to the recording provided as evidence in the\u00a0 Cherrigale case. As such the copyright claim now is based on the recording of \u201cLet\u2019s Get It On\u201d rather than the composition. The registration lists Gaye and Townsend as the authors with a publication date of January 1st<\/sup>, 1978. This bolsters the SAS case as many of the argued similarities are present in the recording based on artistic liberties of Marvin Gaye that aren\u2019t present in the sheet music.<\/p>\n

The question then becomes can Sheeran convince a jury that just because the songs share a chord or other harmonics, that doesn\u2019t mean he is guilty of copyright infringement? Sheeran filed a motion to dismiss arguing that the current case is duplicative of a prior case filed by SAS. However, we just discussed that the current case now involves the recording as well, and the judge dismissed the motion. Ed Sheeren will likely have to show that the elements of the Gaye song are more generic musical elements or otherwise argue that his use was fair use<\/a> of the copyrighted material.<\/p>\n

A fair use defense is a possible defense based on the purpose of the use, whether the work is transformative, the nature of the copyrighted work, and the substantiality of what was taken. In this case the purpose of the use is for profit or financial gain which favors the plaintiff. It\u2019s arguable whether transformative work applies as the Sheeran song is different from the copyrighted song but has various similarities. The copyrighted work is very creative with artistic elements that made the song very successful. A substantial amount of the Gaye song is present in \u201cThinking Out Loud\u201d to the point that Sheeran was able to seamlessly transition from his song to the Marvin Gaye song in a 2014 performance<\/a>. I don\u2019t believe an argument of fair use would be successful.<\/p>\n

Sheeran has argued that other songs have the same sections of Gaye\u2019s song that could have inspired his composition and recording for \u201cLet\u2019s Get It On.\u201d He pointed to songs that came out before Gaye\u2019s song that had the same artistic elements, like \u201cSince I Lost My Baby<\/a>\u201d by the Temptations. If Sheeran can show that the inspiration for his song came from another source, he may be able to prevail in the pending trial. I believe the case favors Ed Sheeran, but this is just one of many cases against Sheeran and it likely won\u2019t be the last.<\/p>\n

Aside from works of art in the public domain<\/a>, copyright protections make it seem nearly impossible to avoid unintentionally copying a feature of another song. Copyrights encourage creative works of art by protecting the rights of artists, but the existence of copyright trolls can also hinder the production of creative works. SAS is an entity that purchases copyrights and other intellectual property for financial gain. I believe that this doesn\u2019t follow the intention of copyright protections. The business model of SAS is to prevent others from producing music rather than producing music themselves or supporting an artist.Certain Judges<\/a> have started to combat such cases but we will have to see if the trend continues.<\/p>\n

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Jacob Taylor<\/em>
\nAssociate Blogger<\/em>
\nLoyola University Chicago School of Law, J.D. 2024<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Ed Sheeran is a Grammy-winning artist known for his hit songs such as \u201cThinking Out Loud\u201d and \u201cThe Shape of You.\u201d Sheeran has accrued a great deal of wealth and as a result seems to be a good target for copyright trolls, litigious entities or individuals that litigate large amounts of copyright infringement cases with often baseless claims in the hope for a settlement. Ed … Continue reading Thinking out Loud\u2026. About Copyrights: Ed Sheeran\u2019s Recent Copyright Lawsuits<\/span><\/a><\/p>\n","protected":false},"author":48,"featured_media":2248,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[70,97,138,205],"class_list":["post-2247","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-copyrights","tag-copyright","tag-entertainment-law","tag-intellectual-property","tag-music"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/2247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/users\/48"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/comments?post=2247"}],"version-history":[{"count":4,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/2247\/revisions"}],"predecessor-version":[{"id":4220,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/posts\/2247\/revisions\/4220"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media\/2248"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/media?parent=2247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/categories?post=2247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/ipbytes\/wp-json\/wp\/v2\/tags?post=2247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}